Archer v. R., 2023 NSSC 2

SUPREME COURT OF Nova Scotia Citation: Archer v. R. , 2023 NSSC 2 Date: 20230106 Docket: Hfx No. 508633 Registry: Halifax Between: John Archer v. His Majesty the King Restriction on Publication: ss. 486.4 Judge: The Honourable Justice D. Timothy Gabriel Heard: Oral Decision: Written Release: December 9, 2022, in Halifax, Nova Scotia December 9, 2022 January 6, 2023 Counsel: Jonathan Hughes, for the Appellant Lisandra N. Hernandez, for the Respondent The original text of this decision has been corrected according to the erratum dated January 10, 2023.

By the Court (orally): [ 1 ] This is an appeal by John Archer of his sentence for sexual assault. He was convicted of having committed the offences on or about February 25 th , 2018 at or near Westphal, Nova Scotia, contrary to s. 271 of the Criminal Code , R.S.C, 1985, c. C-46 . The victim was K.H. I am hearing this matter in my capacity as a

Summary Conviction Appeal Court Judge. [ 2 ] His Honour, Justice Marc Chisholm of the Nova Scotia Provincial Court, in a sentencing decision rendered on July 23, 2021, imposed a suspended sentence for a term of 15 months which included various reporting conditions. A mandatory SOIRA order was also imposed for a period of ten years. [ 3 ] Mr. Archer has raised one ground of appeal. He contends that the Sentencing Judge committed an error in principle by placing an undue emphasis on denunciation and deterrence. The emphasis, he argues, resulted in an improper sentence.

He further contends that this Court should substitute a Conditional Discharge for the suspended sentence, with the same ancillary conditions that Judge Chisholm had imposed. Overview of the Facts [ 4 ] The facts found by the Sentencing Judge note that the parties met on “Tinder”, which is a dating application. Their interactions were initially brief, and they stopped communicating once the Complainant had entered into another relationship. Later on they connected on Tinder and resumed their communication. On February 24, 2018, the Complainant invited the Appellant to meet her at a location in Cole Harbour.

The Appellant met her there. [ 5 ] The next morning, the Appellant and Complainant talked on the phone and discussed their plans for the day. The Complainant

was planning to meet a friend in Halifax around noon to look at prom dresses. They agreed to meet for a walk before she was due to meether friend, and the Appellant agreed to drive the Complainant to the event afterward. [6] The Appellant picked her up at her home around 10:00 a.m. He drove her to Shubie Park. There were a lot of people at thepark. The Appellant parked on the side of the road outside the parking area while they decided what to do. While parked he leaned overto kiss her, but she did not kiss him and pulled back. The Appellant then drove to Spider Lake Park. There was no one around.

He toldher about a look-off point at the top of the hill. It was cold out, and the Complainant was only wearing a dress, as well as a sweater. Thetwo went to the top of the hill. At the top of the hill the Appellant kissed the Complainant, hugged her, lifted her off the ground, andtouched her buttocks and one of her breasts. During this contact, the Complainant squirmed to get out of his grasp. She complainedabout being cold, and asked to go back to the car. [7] Shortly after their return to the car, the Appellant asked her if she wanted to touch his penis. The Complainant clearly statedthat she did not.

The Appellant ignored the refusal and took hold of her hand and wrist with the specific intent of putting her hand on hispenis. She pulled her hand away and he became angry. He told her that he was not her chauffeur, and ordered her to get out of the car. Hethen relented and agreed to drop her off at a bus stop, after which they did not meet again. Issues: [8] I would frame the issues this way: (

i) Did the Trial Judge commit an error in principle by improperly balancing the factors and principles that inform a fit and propersentence? (ii) If yes, did that error have an impact on the sentence that the Appellant received? [9] I note that the Appellant, in his oral submissions, conceded that he no longer contends that the sentence is demonstrably unfit. Analysis (

i) Did the Trial Judge commit an error in principle by improperly balancing the factors and principles that inform a fit andproper sentence? [10] Whether an error in principle has been committed by the Trial Judge is a question of law. As a consequence, it is to bereviewed by this Court on the standard of correctness. Even if I agree that such an error was committed, I may only intervene if the errorhad an impact on the sentence itself: 26.

As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit(para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle includean error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing orbalancing of factors can form an error in principle "[o]nly if by emphasizing one factor or by not giving enough weight to another, thetrial judge exercises his or her discretion unreasonably" (R. v.

McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it isapparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had noimpact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence isdemonstrably unfit. (R. v.

Friesen, 2020 SCC 9) [11] At the outset, it is a fair observation that the Trial Judge did turn his mind to whether a conditional discharge was anappropriate result. In so doing, he considered the principles set out in s. 730(1) of the Criminal Code, and also the guidance provided byR. v. Fallofield (1973), (BC CA), 13 CCC (2d) 450 (BCCA). [12] In the course of this analysis he also considered the circumstances surrounding the commission of the offences, the impact ofthe ongoing psychological trauma sustained by the Complainant, the accused’s expressions of remorse, as well as his attitude toward theoffence.

He carefully considered the impact upon the accused himself, in the aftermath of the offence, as well as his relative youth. [13] Section 730(1) reads as follows: Conditional and absolute discharge 730(1).

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [14] Fallofield tells us that in order for a discharge to be in the “best interests of the accused” s/he must be of good prior character,such that it is not necessary to enter a conviction against the accused to specifically deter the commission of future offences.

Also, it mustbe established that the entry of a conviction may have significant adverse repercussions on the Appellant. [15] The requirement in s. 730(1) that a discharge not be “contrary to the public interest” requires the Court to consider the need forgeneral deterrence which is informed by such factors as the seriousness of the offence, the prevalence of the offence in the community,an analysis of aggravating and mitigating factors and whether, in a broad sense, a discharge would be consistent with the fundamentalpurpose and principles of sentencing. [16] In the course of his reasons, the Sentencing Judge noted:

In relation to the first requirement for the granting of a discharge the accused in this case was just 19 years of age at the time of the commission of the offences. He had no prior convictions. His presentence report is very positive. I find that the accused is a person of good character. In this case the accused incurred significant consequences resulting from the discharge and subsequent criminal proceedings.

Those consequences and his expressions of remorse and his expression of empathy for the harm he caused the victim I find substantially address the need for specific deterrence, substantially but not completely. [ 17 ] The accused’s evidence at trial and his comments to the author of the pre-sentence report were to the effect that he had “misread the signs”, thus misreading the Complainant’s wishes. By way of contrast, the Court’s finding had been that, while in his vehicle at Spider Lake, the accused ignored the Complainant’s expressed wishes, which she clearly communicated to him by saying “no”.

This caused the Sentencing Judge to question whether he had fully accepted responsibility for his behaviour. [ 18 ] Judge Chisholm also alluded to defence counsel’s characterization of the harm that Mr. Archer would sustain, career-wise, if a conviction were entered. Counsel had referred (at the sentencing hearing) to his client’s desire to return to university to pursue a career in nursing. He argued that, upon completing that education, if Mr.

Archer were to attempt to become a Registered Nurse, a criminal record check would be required, and that a conviction that may prevent him from being employed in the profession. [ 19 ] Judge Chisholm observed that this submission was at odds with what the accused had told the author of the pre-sentence report. He had stated at the time that he intended to enter community college to become an electrician. [ 20 ] Often, a lack of clarity in a Pre-Sentence Report may be addressed by submissions made at the time of the sentencing itself.

Certainly, counsel did have the opportunity to make those submissions and, clearly, they did not assuage the Sentencing Judge’s concerns in relation to that particular aspect of the matter. [ 21 ] Judge Chisholm concluded his analysis of the section 730(1) factors by determining that the evidence had failed to satisfy him that the accused may suffer any repercussions, from the entry of a conviction, that would not occur, in any event, with the entry of a discharge.

In other words, he felt that the accused’s situation would be the same, career-wise, whether a discharge or a conviction was imposed. [ 22 ] Judge Chisholm then turned his attention to the second branch of the test set out in s. 730(1) . This is what he had to say about it: The second requirement for the granting of a discharge requires the court to find that the granting of a discharge would not be contrary to public interest. Sexual assault involves violation of a woman’s sexual integrity with a potential significant psychological harm to the victim.

In this case such harm has occurred. [ 23 ] The Court did not view the offence as one of impulse. The evidence persuaded Judge Chisholm that the accused contrived to get the Complainant alone in an isolated place for the purpose of touching her in a sexual manner.

Further, the Court viewed the accused’s reaction of anger (rather than an apology) in response to the Complainant’s refusal to touch his penis, as inconsistent with his claim that he merely misread her wishes. [ 24 ] In concluding that a discharge would be contrary to the public interest, the Sentencing Judge identified his concern that the granting of discharge would not adequately address the need for denunciation and deterrence of this type of offence. Specifically, Judge Chisholm observed: The sexual touching of a woman in circumstances such as this is a criminal offence.

The accused’s touching of the victim’s breasts and buttocks was not a trivial matter. The upset and fear that he caused the victim was significant and led to significant long-term psychological harm. For those reasons, the application for a conditional discharge is denied. [ 25 ] His Honour did not stop there. Since he had ruled out a conditional sentence as a fit and appropriate one in these circumstances, he went on to consider what type of sentence was necessary. [ 26 ] In doing so, the Trial Judge did not view the individual circumstances of the Appellant in isolation or a vacuum.

Among other things, and as we have seen, he specifically considered the fact that Mr. Archer was a young man and one of good character. He conducted a detailed analysis of the evidence with respect to Mr. Archer’s career plans and concluded that he was not satisfied that they had been firmed up at present. He also considered the apparent depth of Mr. Archer’s insight into the seriousness of his conduct. [ 27 ] Judge Chisholm considered the prevalence of sexual assaults in the community. He was ideally positioned to do so.

He also considered the trauma sustained by the Complainant, the accused’s demonstrable level of responsibility, the nature of the conduct itself, and the caselaw. [ 28 ] There is no question that the elements of denunciation and deterrence, both specific and general, played a prominent role in Judge Chisholm’s decision. But this is not to say that he erred because of this. [ 29 ] Indeed, the Sentencing Judge was required to give significant consideration to these factors. I refer to Friesen once again: 89.

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584, at paras. 45 and 48 ). As L'Heureux-Dubé J. reasoned in L. (D.O.), "the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women" precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441).

Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation ( Benedet , at p. 310; Hajar, at para. 67). [ 30 ] Moreover, I observe that Judge Chisholm’s comments about the prevalence of sexual assault in the community align with those

of the Supreme Court of Canada’s earlier comments in Friesen: 54. The enactment of Bill C-15 also illustrates how Parliament sought to protect children's equality interest. Parliament enacted Bill C-15 following the reports of the Committee on Sexual Offences Against Children and Youths and the Special Committee on Pornographyand Prostitution.

Both reports emphasized the need for any reform of the scheme of sexual offences against children to guarantee childrenthe equal protection of their interests in autonomy, dignity and physical and sexual integrity (Badgley Committee, vol. 1, at pp. 39 and292; Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the SpecialCommittee on Pornography and Prostitution (1985), vol. 1, at p. 24 ("Fraser Committee"); Fraser Committee, vol. 2, at p. 563).

Bothreports also concluded that the failures of the existing scheme of sexual offences against children disproportionately affected girls andyoung women because they were disproportionately victimized (Badgley Committee, vol. 1, at p. 180; Fraser Committee, vol. 2, at p.573). In his speech introducing Bill C-15, then Minister of Justice Ray Hnatyshyn highlighted the conclusions of both reports.

Hereferred to statistics from the report of the Committee on Sexual Offences Against Children and Youths showing that children aredisproportionately vulnerable to sexual offences and that girls and young women are disproportionately victimized relative to boys. TheMinister emphasized that the reform of the scheme of sexual offences against children would guarantee children "the equal degree ofprotection of the law" and provide them "more complete protection ... from all manner of sexual abuse" (House of Commons Debates,vol. 1, 2nd Sess., 33rd Parl., November 4, 1986, at p. 1037). 55.

These developments are connected to a larger shift, as society has come to understand that the focus of the sexual offences scheme isnot on sexual propriety but rather on wrongful interference with sexual integrity.

As Professor Elaine Craig notes, "This shift fromfocusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation,shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the casewhen the law's concern had a greater focus on sexual propriety)" (Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), atp. 68). 56 This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus theirattention on emotional and psychological harm, not simply physical harm.

Sexual violence against children can cause serious emotionaland psychological harm that, as this Court held in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, "may often be morepervasive and permanent in its effect than any physical harm" (p. 81). [31] In sum, the Sentencing Judge considered all of the circumstances holistically, and determined that it was not appropriate that aconditional discharge be granted. Another judge might have come to a different conclusion. Certainly a conditional discharge was withinthe range of outcomes that might have been imposed in a case of this nature.

However, it bears emphasis that this Court may onlyconsider intervention if an error in principle which impacted the sentence has been committed. I cannot gratuitously substitute anotherdecision for the one that Judge Chisholm has imposed. The Sentencing Judge is entitled to deference in these circumstances. (ii) If yes, did that error have an impact on the sentence that the Appellant received? [32] Even if I had concluded that the Sentencing Judge had committed an error in principle, I would not have not been satisfied thatit had any impact upon the sentence.

In particular, after balancing the aggravating and mitigating factors he concluded that a fit andproper sentence did not require a period of incarceration in these circumstances, as has already been observed. [33] Among other things, it is quite obvious that he paid proper attention to the principle of restraint and, in particular, he indicated(page 28) that: …the sentence must be the least restrictive sentence while being consistent with the fundamental purpose, principles and objectives ofsentencing. [34] Judge Chisholm then went on to discuss the youth of the accused, although he noted that the Complainant was even younger.He also referenced the significant consequences which the accused had sustained in the aftermath of the charges and conviction.

Heexpressly considered all of that. [35] Defence counsel argued that the decision is inconsistent with such decisions as R. v. J.W.,

(2010) NSPC 40. With respect, theSentencing Judge’s findings in this case distinguish it from J.W., which was a situation where the accused was found to have acted onimpulse. He expressly noted elements in this case suggestive of planning and orchestration. Another significant distinguishing factor,was that the Complainant in J.W. did not sustain physical or psychological harm for any appreciable length of time. In this case, theComplainant clearly did.

All of these things played into Judge Chisholm’s decision as he decided upon the appropriate sentence. [36] The Sentencing Judge was thorough in his analysis of all of the principles that inform a fit and proper sentence. He gaveappropriate attention to all, and the emphasis that he gave to denunciation and deterrence was in accord with the decided caselaw.Moreover, it was tethered to the evidence and the findings of fact which had been earlier made. Conclusion [37] With respect, I can find no error in principle inherent in Judge Chisholm’s reasoning.

It follows that I have not been persuadedthat the sentence of 15 months with reasonably light conditions, with the mandated SOIRA order, is the product of an undue or improperemphasis given by the Sentencing Judge to one or more of the sentencing principles that he was required to consider. As a consequence,the appeal is dismissed.

Gabriel, J. SUPREME COURT OF Nova Scotia Citation: Archer v. R. , 2023 NSSC 2 Date: 20230110 Docket: Hfx No. 508633 Registry: Halifax Between: John Archer v. His Majesty the King ERRATUM Judge: The Honourable Justice D. Timothy Gabriel Heard: Oral Decision: Written Release: December 9, 2022, in Halifax, Nova Scotia December 9, 2022 January 6, 2023 Counsel: Jonathan Hughes, for the Appellant Lisandra N. Hernandez, for the Respondent Erratum Date: January 10, 2023 Para. 21 – reference to s. 270(1) should be s. 730(1) Para. 22 – reference to s. 270(1) should be s. 730(1)